The film daily year book of motion pictures (1936)

COMMENT The Court said : "It seems to be plaintiff's contention that any past infringement by the defendant of any particular copyrighted motion picture film would justify a present issuance of an injunction against the defendant from infringement of any other films whether now or hereafter to be copyrighted by the plaintiff and subsequently furnished to the defendant under contractual arrangements for exhibition ... In the analogous field of patent law, it would hardly be contended that because a defendant in the past had violated a particular patent he should be enjoined thereafter from violating any other patent which the plaintiff might secure. The violation of a copyright is classed as a tort and for injunctive purposes may be considered analogous to trespassing on real estate. It is, of course, well settled that in the latter class of cases injunctions do not issue unless to prevent continuous trespassing or a threatened trespass . . . Here the defendant is expressly insisting on her right to a jury trial of the facts of alleged infringement set up in the bill and it seems impossible to deny her right in that respect under the Seventh Amendment, where there is no equitable right to an injunction appearing on the face of the bill." It may follow from the Fisher and Dattola cases, that exhibitors will have the right to demand trial by jury in cases for infringement of copyright by unauthorized exhibitors (holding over, bicycling and subrenting). Statute Damages — Discretion of Trial Court In Douglas v. Cunningham,'^ the United States Supreme Court held that in an action for copyright infringement, an award of damages under the copyright law" (in lieu of actual damages) is committed solely to the discretion of the trial court who may grant any sum between $250 and $5,000, in which case, his award may not be reviewed by an appellate court. COMMENT The Court said : "The phraseology of the section was adopted to avoid the strictness of construction incident to a law imposing penalties, and to give the owner of a copyright some recompense for injury done him, in a case where the rules of law render difficult or impossible proof of damages or discovery of profits." "The trial judge may allow such damages as he deems to be just . . . Congress declaring, however, that just damages, . . . cannot be less than $250, and . . . cannot be more than $5,000. "In other words, the employment of the statutory yardstick, within set limits, is committed solely to the court which hears the case, and this fact takes the matter out of the ordinary rule with respect to abuse of discretion. This construction is required by tlie language and the purpose of the statute." Author and Producer — Plagiarism In Ornstein v. Paramount Productions," an author sued Paramount claiming that the photoplay "BLONDE VENUS" infringed the copyright of his play. The author had copyrighted the play in 1931. He thereafter submitted it to the producer who produced and distributed "BLONDE VENUS" in 1932. The producer denied plagiarism and alleged that "the play and the basic plot, theme, ideas, sequences, events, and episodes in the plaintiff's work are not novel or original with the plaintiff, but constitute common property residing in the public domain and are not properly the subject of copyright under the copyright laws of the United States." By stipulation the play and the photoplay were attached to the bill to permit the court to examine and decide from them whether the producer had copied the play.*' The Court dismissed the complaint. He said : "If it appears from the examination of the play and the photoplay that the photoplay does not infringe, there is no reason for having a trial. . . . 'From the synopsis of the play and of the photoplay, it is evident that while both authors make use of a common fundamental plot, the stories told are not the same. There is a material difference in the characters of the principals and the episodes, although there is bound to be a resemblance in the basic narrative. The scenes, locale, and action differ. The dialogue also is materially different and naturally the stories are not the same. * • ♦ There was no infringement of complainant's copyright."" COMMENT The Court said : "It is true that an author has an exclusive right to his own treatment of an idea, subject, or plot. * * * The copyright law protects the means of expressing an idea; * * * if the same idea can be expressed in a plurality of totally different manners, a plurality of copyrights may result, and no infringement will exist. "^^ The Court recognized the producer's access to the play and the likelihood that some of the ideas found in defendants' photoplay were suggested by complainant's play and other older books and plays. He decided, however, that "defendants have taken nothing from any of them that was not in the public domain or public property." Cartoonist and Doll Maker In Fleisher Studios v. Freundlich^^ the manufacture of a doll which copies plaintiff's copyrighted "Betty Boop" cartoons, was held to be infringement. COMMENT The Court said : "The infringement charged was a reproduction of the Betty Boop cartoon in manufacturing a doll. This, a three-dimensional form of doll, is an infringement of the two-dimensional picture or drawing. . . . What the appellant constructed is recognizable by an ordinary observer as having been taken from the copyrighted source. The essential characteristics . . . are reproduced. There is the broad baby face, the large round flirting eyes, the low-placed pouting mouth, the small nose, the imperceptil)le chin, and the mature bosom." . . . Composer and Publisher — infringement — Music In Arnstein v. Edward B. Marks Music Corp.^^ a musical composer sued for infringement. He claimed the publisher, with knowledge of his rights, had published and marketed a musical composition called "Play, Fiddle, Play," copied from the composer's piece without his consent. The publisher admitted the song had been submitted to him but denied ever giving it consideration. A Federal Judge found no infringement and said : ". . . there are some rather striking similarities in the two pieces, not enough, however, to force the conclusion that the defendant's song was necessarily